In Scotland there may be a reference to oath at any time between
the closing of the record and the extracting of the decree, although every
other mode of proof has been previously tried and has failed.

Even after a judgment of the House of Lords on appeal a reference
to oath is competent, and continues so till extract.

Such reference, however, is matter of judicial discretion, and not
to be permitted where the status, the rights, or the interests of third parties
may be prejudiced or affected.

The true principle is, to settle the immediate question between
the parties litigant, and to go no further.

A reference to oath ought not to be permitted where the response
may involve an admission of criminality; for no one is bound to swear in suam
turpitudinem.

As to whether a reference to oath is competent in a declarator of
marriage, see the opinions of the Lord Chancellor, infra, p. 220; of Lord
Cranworth, infra, p. 226; and of Lord Colonsay, infra, p. 227.

Practice.

At the close of the Respondents argument the Appellant,
who had opened her case in person, was told that the House would hear her
Counsel in reply. But if she began she must finish. The House would not allow
her to break off and then hear her Counsel.

ON the 7th of August, 1858, Maria Theresa Longworth, or Yelverton
(who, for the sake of brevity and distinctness, will be hereafter, in this
report, called Maria Theresa only), commenced her suit in the Court of Session,
praying a declaration that she was the lawful wife of Major Yelverton.

On the 8th of June, 1859, Major Yelverton brought his cross action
in the same tribunal against Maria Theresa, praying a [*219] declaration that he
was free of any marriage with her, and that she should be put to
silence.

The Court of Session (First Division) ultimately pronounced
judgment in favour of Maria Theresa with costs. In other words, they declared
that she was the lawful wife of Major Yelverton; 
the Lord President, now Lord Colonsay, dissenting.

Against this decision Major Yelverton appealed to the House of
Lords.

On the 28th of July, 1864, their Lordships reversed the decision
appealed from, and remitted the cause back to the Court below, to do therein as
should be just and consistent with the judgment of the House(1).

Before the question was put from the woolsack the counsel of Maria
Theresa asked and submitted that the judgment of the House should leave it open
to her, if she should be so advised, to refer the points at issue to the oath
of Major Yelverton. The House, however, did not accede to this application(2).

On the 19th of November, 1864, Major Yelverton presented his
petition to the Court below praying that the judgment of the House should be
applied.

On the 10th of December, 1864, the counsel of Maria
Theresatendered a reference of the whole cause to the oath of Major Yelverton.

After due consideration of printed and oral argument as to the
competency and the propriety of this application, the Court below ultimately,
on the 10th of March, 1865, refused to allow the reference proposed; and it was
against this refusal that the present appeal was tendered.

On the 27th of June, 1867, the case stood in the paper for
hearing; the Law Peers present being the Lord Chancellor, Lord Cranworth, Lord
Westbury, and Lord Colonsay.

THE LORD CHANCELLOR, addressing Maria Theresa, said: I
thought you were to appear by counsel.

Maria Theresa: My counsel is not here.

THE LORD CHANCELLOR: If he is likely to come, we should
be

(1) 4 Macq. 747.

(2) 4 Macq. 746 and 911. [*220] sorry to deprive you of the benefit of
counsel. But you perhaps prefer addressing the House yourself.

Maria Theresa: Yes, my Lords.

The address of Maria Theresa went over several days.

The Attorney-General(1) and Mr. Anderson, Q.C., were heard on the
other side.

At the close of their argument it appeared that the counsel of
Maria Theresa, Mr. Campbell Smith, had arrived from Scotland.

It was, therefore, intimated to Maria Theresa that her counsel
might reply, Major Yelvertons counsel not objecting; and the Lord
Chancellor (after a reference to the other Law Peers) observing: If
you are unable to go through the reply yourself, we think, under the
circumstances of this exceptional case, that we may hear your counsel. But if
you begin you must finish. We cannot allow you to break off and then hear your
counsel.

Maria Theresa:– He is not prepared to reply.

THE LORD CHANCELLOR  Then you must go on yourself.

At the close of Maria Theresas argument the Lord
Chancellor said the House would take time to consider of its judgment.

On the 30th of July the Law Peers delivered the following
opinions, which more than exhaust the authorities and arguments adduced at the
Bar.

THE LORD CHANCELLOR(2):–

My Lords, on the 19th of November, 1864, Major Yelvertonhaving
presented the usual petition to the Court of Session to apply the judgment
pronounced by your Lordships on the former appeal, the present Appellant, Maria
Theresa, lodged a note praying the Court to supersede consideration of the
Majors petition, and craving leave to put in a condescendence of res
noviter veniens ad notitiam. The proposed condescendence alleged

(1) Sir John Rolt.

(2) Lord Chelmsford. [*221]

that since the judgment of this House(1) she had been
informed that Major Yelverton, when on a visit to his deceased brother, the
Honourable Frederick Yelverton, in the presence of Sarah Mallins, who was at
the time attending the brother as a sick nurse, acknowledged and admitted that
he had married Maria Theresa in Scotland, and renewed his marriage vows in
Ireland; that Sarah Mallins died in the Meath Hospital; and that when she was
in a dying state, and attended by the Reverend Edward George Campbell, she told
him what had passed between the two brothers, and he communicated it to Maria
Theresa.

The Court below, after argument, pronounced an interlocutor on the
10th of December, 1864, by which they refused the desire of Maria
Theresas note, and applied the judgment of this House.

After this interlocutor a minute of reference to oath was tendered
on behalf of Maria Theresa, which minute was in the following terms:
The Pursuer in the said declarator of marriage hereby refers the
whole cause to the oath of the Defender, the said William Charles
Yelverton; and a Petition was presented praying the Court to sustain
the minute of reference to oath.

The First Division, on the 10th of March, 1865, pronounced the
interlocutor now appealed from, refusing to sustain the proposed reference to
Major Yelvertons oath.

Now, my Lords, it must be taken as a settled rule of law in
Scotland, that there may be a reference to the oath of a party at any time
between the closing of the record and the extracting of the decree, although
every other mode of proof has been previously tried and has failed. And however
strange it may appear to those who are unaccustomed to the practice of the
Scotch Courts, that a party having attempted to prove a case by testimony, and
having failed, should be allowed, almost at the last moment, even after final
judgment, to resort to a new method of proceeding of which he had his choice
from the first, yet, such being the law, we are bound not to question but to
administer it.

The reason why this reference to oath is allowed at so late a
stage of the proceeding seems to be, that until judgment is extracted the cause
is still in Court. This being so, there can be no difference in principle
between the case where a judgment is

(1) On the 28th of July, 1864. [*222]

final in the Scotch Courts because not appealed from, and the case
of a final judgment by this House, which equally requires extract before
execution can issue.

But it was contended on the part of Major Yelverton that a
reference to oath is inadmissible in a case of declarator of marriage, and
especially where, as in this case, the interests of third persons are concerned.

With respect to the competency of a reference to oath in a
declarator of marriage, I am strongly of opinion that, whatever may have been
the practice formerly, since the statute 11 Geo. 4 & 1 Will. 4, c. 69, such
a proceeding is incompetent. The 33rd section of this Act enacts,
that all actions of declarator of marriage, and other
enumerated consistorial actions, shall be competent to be brought and
insisted upon only before the Court of Session. And, by the 36th
section, no decree or judgment in favour of the Pursuer shall be
pronounced in any of the consistorial actions therein before enumerated, until
the grounds of action shall be substantiated by sufficient evidence.

In the case of Muirhead v. Muirhead (1), which was an
action of separation à mensâ et thoro, brought by a wife
on the ground of ill-usage, the husband admitted on the record conduct which,
in the opinion of the Lord Ordinary, was sufficient to justify the conclusions
of the action. Upon the case coming before the Court upon a verbal report by
the Lord Ordinary for instructions, Lord Mackenziesaid, and the rest of the
Court concurred, I read the words sufficient
evidence as meaning sufficient evidence independent of the admissions
of the party. I think the Act meant entirely to exclude admissions, and require
extrinsic evidence. Now it is quite clear that an admission upon the
record can never be regarded as evidence; but the Court could not have meant to
say, that if proof had been led in the case, admissions proved to have been
made by the husband that he had ill-used his wife would not have been evidence,
and might not have been sufficient evidence. But an oath
upon reference is not evidence at all. As my noble and learned friend, Lord
Colonsay, said in this case in the Court of Session: A reference to
oath is not what we are accustomed to regard as testimony proper. It is neither
parol nor

(1) 8 Dunlop, 786. [*223]

documentary evidence. An oath taken upon a reference is not the
examination of a witness, it is what is technically called oath of
party. And again, It is not to be taken in connection with
documentary or parol evidence that has been adduced. It may be hostile to all
other evidence. It is to be judged by itself, and the question for the Court to
determine, upon an oath emitted under a reference, is not what upon the aspect
of the whole cause appears to be the truth of the matter, but it is, what has
the party sworn? As a party by referring to the oath of his adversary
renounces all other species of proof, and as the oath emitted under a
reference is not evidence, a decree pronounced in a declarator of
marriage founded upon this mode of proceeding, would be a violation of the
express words of the statute, as the grounds of the action would not have been
substantiated by sufficient evidence. A reference to oath,
therefore, cannot, in my opinion, be competent in this description of action.

But supposing a reference to oath to be admissible in an action of
declarator of marriage, it ought not to be permitted in any case where the
rights and interests of third persons would be prejudiced by a decree founded
upon an oath affirmative of the reference. That would be the necessary
consequence of such a decree in the present case.

It appears upon the record that, after the time of his alleged
marriage with Maria Theresa, Major Yelverton was married in June, 1858, in
Edinburgh, to Mrs. Forbes, the widow of Professor Forbes. A decree, therefore,
establishing the validity of the marriage of Maria Theresa and Major Yelverton,
must necessarily deprive Mrs. Forbes of the status which she acquired by her
marriage with Major Yelverton. And this consequence would be the result of what
is called a transaction or judicial
contract between persons engaged in a litigation to which she is no
party.

It was said, however, by Maria Theresa, that the reference to oath
could not prejudice Mrs. Forbes, because the oath affects the parties to the
transaction only; and that no judgment on it could be res judicata against her,
being res inter alios acta. It is quite true that the oath of reference would
not affect third persons; but there may be cases in which it must, of
necessity, prejudice, if not conclude, the rights of strangers to the
proceeding. In such cases [*224] the reference to oath is not admissible, for, as was said
by Lord Moncreiff, in Adam v. Maclachlan (1), the general case of reference
to the oath of party is, where the party referring and the party referred to
stand with opposed interests on the matter referred, and where no other
interest is involved.

Upon this point I may borrow the language of Lord Stowell in
Dalrymple v. Dalrymple (2), where he says:

The lady of the second marriage is not here made a party
to the suit. She might have been so in point of form if she had chosen to
intervene. In substance she is; for her marriage is distinctly pleaded and proved,
and is as much, therefore, under the eye, and under the attention, and under
the protection of the Court as if she were formally a party to the question
respecting the validity of this marriage, which is, in effect, to decide upon
the validity of her own. For I take it to be a position beyond the reach of all
argument and contradiction, that if the first marriage be legally good, the
second marriage must be legally bad.

If upon the oath of reference in this case a decree were made
establishing the marriage of Maria Theresa and Major Yelverton, there can be no
doubt that it would be binding upon Mrs. ForbesIt would be a judgment in rem,
which has been defined to be an adjudication pronounced upon the
status of some particular subject matter by a tribunal having competent
authority for that purpose(3); and the characteristic quality of a
judgment in rem is, that it furnishes in general conclusive proof of the facts
adjudicated, and is binding on all persons whomsoever. If, therefore, the
reference to oath were to be admitted in this case, Mrs. Forbesmight be
deprived of her status as a wife by a decree made behind her back, and which
she would never afterwards be able to question.

But there is a further objection to the reference to oath in this
case, that the answer to it in the affirmative (an answer which Maria Theresa
must be taken by her reference to expect to receive) necessarily involves an
admission by Major Yelverton of criminality. If he were to admit the alleged
marriage between himself and Maria Theresa, he must confess that he has been
guilty of bigamy. And this necessary effect of an affirmative answer plainly
appears upon the record, where his marriage with Mrs. Forbes, at a date
subsequent to the time of his alleged marriage

(1) 9 Dunlop, 560.

(2) 2 Con. 58.

(3) 2 Smiths Leading Cases, 439. [*225]

with Maria Theresa, is pleaded, Maria Theresa says, in her printed
case:

There are cases in which a reference to oath was refused
on the ground that a party should not be compelled to swear in suam
turpitudinem. But all these cases were prior in date to the Act 1 Will. 4, c.
37, the 9th section of which abolished infamy as a ground of incompetency of a
witness. The Act 15 & 16 Vict. c. 27, further removes all impediments to
the admissibility of the evidence of persons convicted of crime. In the present
state of the law of evidence it is obvious that in the cases of Rogers (1), McEacharn (2), and Thomson (3), the parties who
were not obliged to swear in suam turpitudinemwould now be competent and
compellable witnesses in similar cases, with the option of declining to answer
any question that might criminate themselves.

Such is the argument of Maria Theresa upon this point, which
leaves out of view one very important consideration, namely, that although the
party in a case of reference to oath may refuse to answer if thereby he would
criminate himself, yet the effect is, that he is taken to have confessed the
facts which are referred to his oath, and exactly the same benefit results to
the party making the reference as if he had obtained an affirmative answer. In
the present case, therefore, Major Yelverton, if he answered affirmatively,
would have admitted himself to have been guilty of bigamy, or if he had refused
to answer, Mrs. Forbes would have been conclusively deprived of all the rights
which she had acquired by her marriage with Major Yelverton.

There can be no doubt that a reference to oath is not the absolute
right of a party, but that it is in the equitable discretion of the Court to
admit or to refuse. Lord Moncreiff, in the case of Pattinson v. Robertson (4), said:
I could not perhaps go quite so far as Lord Cringletie did in the
case of Ritchie (5), though in that approved by Lord Chancellor Lyndhurst, that
the reference to oath is in our law a mere appeal to the equitable discretion
of the Court. But I agree so far, that though regarding it as a legal right to
appeal by motion to the Court to that mode of proof as an ultimate remedium, it
may still be in the discretion of the Court to allow it under the circumstances
of any particular case.

Now, assuming that there may be a reference to oath in an

(1) 2 Shaw, 444.

(2) 3 Ibid. 9.

(3) 7 Shaw, 32.

(4) 9 Dun. 226.

(5) 3 Wils. & Sh. 484. [*226]

action of declarator of marriage, yet where, as in this case, the
interests of a third person are affected, and may be irrevocably bound, and
where the effect of the reference may be either to compel the confession of a
crime, or to conclude the rights of another by a refusal to answer, I think
that the Court of Session were perfectly justified, in the exercise of a sound
judicial discretion, in refusing to sustain the reference to oath in this case,
and that their interlocutors ought to be affirmed.

LORD CRANWORTH:

My noble and learned friend on the woolsack having had the
goodness to communicate to me an outline of the opinion which he was about to
deliver in moving the judgment of your Lordships House, and
concurring, as I do, with my noble and learned friend in the whole of that
opinion, I do not think that I am called on to trouble your Lordships with many
 I might, perhaps, say with any  observations. I wish it,
however, to be understood that, though my learned and noble friend has referred
to the statute of 11 Geo. 4 & 1 Will. 4, transferring the consistorial
jurisdiction in Scotland to the Court of Session, as being, in some respects,
the foundation of his judgment, and although it may be very truly said that
that statute confirms the view which may be otherwise taken an the subject, I
must confess that, independently of that statute, I do not believe that it can
be the law of Scotland that, in such a case as this, there should be a
reference to oath. The principle on which that reference is allowed is so
clearly stated by Lord Moncreiff, in the passage quoted by my noble and learned
friend, that I should be willing to rest my opinion on that authority, even if
the statute had not existed. The general case, he says,
of reference to the oath of party is where the party referring and
the party referred to stand with opposed interests on the matter referred, and
where no other interest is involved(1). When that is the case, there
is, perhaps, no absurdity (so to say), even at the very last moment of time, in
allowing a reference to the oath of the party. But the moment you get a case in
which the interests of third parties are involved, it appears to me to be a
proposition

(1) Adam v. Maclachlan, 9 Dun. 578. [*227]

that cannot be sustained, even upon the authorities which have
been referred to, that such can be the law of Scotland, or of any civilized
country. There is no doubt that there have been consistorial cases in which a
reference to oath has been admitted; but there has been no such case in which
the doctrine has been affirmed by this House; and I cannot admit that it could
have been properly recognised and acted upon in those cases, if they involved
(as I believe some of them did) the interests of third persons, as is certainly
the case here. Even if there had been no marriage with Mrs. Forbes, I very much
doubt whether, in any case of a question of status, there can be such a
reference to oath, because the interests of third parties are necessarily
involved. When the question is, whether a person is or is not a married woman,
the interests of all the creditors who have trusted her must be involved.
Therefore, I think, general principle goes far to exclude it in all cases. But
even if that were not so, the last observation of my noble and learned friend
seemed to me to be perfectly satisfactory  namely, that it is clear
on all the authorities that such a reference is not the absolute right of any
party, but only a right which the Court, in its discretion, may or may not
allow; and it would have been a highly-improper exercise of its discretion to
have allowed it in this case.

LORD WESTBURY:

My Lords, it is not my intention to give any vote on this
question, as I was compelled to be absent during part of the argument. But I
had the advantage of hearing the whole of Maria Theresas address; and
I am obliged to say that the impression which I then received was that there
was no ground on which this judgment of the Court below could be questioned.

LORD COLONSAY:

My Lords, after the expressions of opinion which have now been
given, this case is practically decided. Whatever view I may have of it
 whatever view I may express, if I express any opinion at all
 the judgment must be the same. But, my Lords, in a case of this
kind, which I view as one of vast importance to the law of [*228] Scotland, I think it
incumbent on me to express the opinion that I entertain.

When the case was presented to the Court below, the novelty of the
proposition of a reference to oath in such a case appeared to me so great that
I thought it right, after having heard a full oral argument on the subject, to
suggest that the parties should again lay before the Court the argument in a written
form, in order that it might be deliberately considered; and it was after
having had the benefit of those two discussions (as I may call them) upon it
that I arrived at the conclusion that the proposal of the Appellant, to refer
this matter to the oath of the Defender, was one which, under the
circumstances, could not be admitted. Since then the question has been fully
argued at the bar of this House, and I deemed it my duty to revise and
reconsider the opinion which I had formed, feeling that, perhaps, the Appellant
had not had all the benefit she might have derived had she selected a different
mode of conducting her case.

Having again applied my mind to the case, I have failed to find
any ground for altering the judgment that has been pronounced in the Court
below.

It appears to me to be a clear proposition in the law of
Scotlandthat in most cases (I will not, after what has been expressed, say in
all cases, but in most cases) a party may apply to have a reference to the oath
of the adversary after the case has been decided. Whether that is, or ought to
be, the rule in cases of declarator of marriage, may be a grave question. But
in a case such as this, and, indeed, in all cases, where reference to the oath
of a party is proposed, there is a discretionary power in the Court to allow
the reference, or not to allow it. The very form of the proceeding implies
that; because when it is proposed to refer to the oaths of the adversary the
proposal is submitted to the Court, and it requires the approval of the Court
before the adversary can be put to oath. Therefore, the Court is forced to
consider the matter on the proposition which is submitted to it before it can
give its approval. And that approval is a matter not limited to the mere form
in which the reference is presented  it involves also a consideration
of the circumstances of the case and the propriety of allowing the reference.
That is clear from all the authorities, and [*229] from some of the cases which have been
referred to by my noble and learned friend on the woolsack.

That being so, the question which we had to consider was, whether
this was a case in which such a reference to oath should be allowed. There,
again, several questions were raised. First, as to the competency of reference
under such circumstances; and, secondly, as to the propriety of the Court
exercising its discretion in the way of allowing or refusing the reference,
even supposing it to be competent.

Upon the question of the competency of the reference I do not
think it is necessary for me to express any decided opinion. There were certain
objections taken to the competency of the reference which I thought at the
time, and still think, to be unfounded. In the first place, it was objected
that this reference could not be made, because there had been a final judgment
of the House of Lords in the cause. I was unable to bring my mind to that
conclusion. I was unable to see any logical distinction between the power of
the Court below, after a final judgment of this House, affirming the judgment
of the Court below, and the power of the Court below, if its own judgment had
been allowed to remain unappealed against; for the rule is, that at any time
before extract reference is good. When a party has lost his cause in the Court
below and has appealed to this House, and this House has affirmed the judgment,
I can conceive a very good reason, in policy, why, in such circumstances, a
reference to oath should not be allowed; but when a party has gained the cause
in the Court below, and the adversary drags that party here and gets an
alteration of the judgment, why should the party be precluded in that case from
referring to oath. She could not have done it in the Court below in the
circumstances in which she then was, for she had gained her case. Therefore, I
think it would be a hazardous doctrine, and one which I could not acquiesce in,
to hold that merely because there had been a judgment of the House of Lords in
the case  therefore a reference to oath was incompetent.

Another point was raised, as to which I have more difficulty, as
to whether a party can be allowed to refer to oath in a suit of this kind,
looking at the terms of the statute of 11 Geo. 4 & 1 Will. 4, c. 29, I did
not think it necessary in the Court below to pronounce any [*230] judgment on that
point, because I saw sufficient grounds without it to arrive at a conclusion
upon the case. And though I see great force in the argument, I would rather now
not commit myself to any opinion on the point. There is much to be said in
favour of the view that the statute has shut out such references in cases of
declarator of marriage and other consistorial causes. But that depends on the
meaning that is to be attached to the word evidence in that
statute, and to the meaning that is to be attached to the word
admission in Lord Mackenzies judgment(1). There
is great room for holding that in Lord Mackenzies judgment, at least,
the word admission meant an admission by the party upon the
record; that is to say, that the party merely putting on the record admissions,
is not enough to entitle the Court to proceed to pronounce judgment in a
declarator of marriage. That is not evidence given under the sanction of an
oath. According to the course of procedure in the Courts in Scotland, where a
matter is admitted the opposite party does not require to adduce evidence to
prove it. And we know that in consistorial cases of various kinds it would be
perilous to the interests of society to proceed upon admissions made by the
parties. There was a case under our consideration in this House which, I think,
affords an illustration of what might happen if such matters were admitted. I
mean the case of Cunningham v. Cunningham (2). In that case, where a party had,
during the life of a woman, and at her death, shewn by his conduct, and where
the whole circumstances of the case, as judged in this House, had shewn, that
there had been no marriage whatever between the parties; yet, after an interval
of time, when it became his interest or inclination to change the state of
affairs, he then chose falsely (as the judgment of the House found) to allege a
marriage. Now we see what peril would attach to the interests of third parties
if a reference to oath were admitted in such cases.

Another ground was contended for, namely, that by requiring the
party to swear in this case he was required to swear in suam turpitudinem. That
is, I think, a graver question. I think there is much in it, as I stated in the
Court below.

But when we come to the question, whether the Court is to

(1) Muirhead v. Muirhead, 8 Dun, 786.

(2) 2 Dow. 483. [*231]

exercise the discretion that belongs to it, I confess that I see
every principle against sustaining the reference, and no principle in favour of
it. I think it is quite clear that such a rule as referring to the oath of a
party after a case has been fully investigated is one which, if it exists in
any system of jurisprudence at all, must be guarded with a discretionary power
of the Court to prevent its being abused. That discretionary power exists with
reference to the administration of this branch of the law in Scotland. And when
we come to look to the principle on which reference to oath is admitted, I
quite concur in the view that has been expressed by my noble and learned
friend, that the true principle is to settle the immediate question between the
two parties in contest, and to go no farther. Now, if the question in a suit
between two parties be one which necessarily involves the interests of a third
party, if it be of a kind that the settlement of the question between these two
parties would, or might, greatly injure the interests of a third party, then I
think it questionable, in the first place, whether such a reference to oath
would be competent; but I also think it quite clear that any exercise of
judicial discretion ought to go in the direction of preventing such risk of
injury to a third party.

Upon these grounds, my Lords, I am quite clear that the judgment
of the Court below ought to be affirmed. If, on hearing the argument, I had
entertained any doubt on the question, or had come to a conclusion opposite to
that to which I arrived in the Court below, I certainly should not have
hesitated to concur, as I did in a former case in this House, in altering the
judgment which I had pronounced in the Court below; but I see no reason to
entertain any doubt whatever in this case.